Reforming the Statute of Limitations for Child Sex Abuse: New York's Child Victims Act Shouldn't Be Political, But It Is

Last week, the New York Child Victims Act (available at http://open.nysenate.gov/legislation/bill/S5893A) was defeated in the Senate Codes Committee. For New York's children, it was a choice that favors child predators, and therefore a bad day. However, it was an interesting session and the bill will be re-introduced next session -- and every session until it is passed, according to sponsors Assemblywoman Marge Markey and Senator Ruth Hassell-Thompson. The only impact is that child predators have one more year to operate under the anonymity afforded by New York's extremely short statutes of limitations for child sex abuse.

The bill embodies the same type of statute of limitations ("SOL") reform that I've advocated in multiple columns here at FindLaw, and in my book Justice Denied: What America Must Do to Protect Its Children. It would create a short 5-year extension for criminal and civil SOLs for child sex abuse, and it would open a "window" of one year for all past victims to come forward without having to worry about expired statutes of limitations. The extension is too short in my view, but the window is absolutely crucial to identifying child predators.

As I've explained, such reform is the only tried-and-true method for identifying hidden child perpetrators, as the enactment of the legislation establishing the California SOL window proved. In this column, I'll further discuss New York's continuing experience with reform for children.

The Recent History of the New York CVA

After the CVA thrice passed in the New York Assembly, Assembly Speaker Sheldon Silver told the Senate that he would be more than willing to get the bill to the floor in the Assembly again, but first, it needs to be passed by the Senate.

Thus, the Senate's Codes Committee was the first stop. As noted above, the CVA was voted upon there, and lost last week. However, the CVA never even made it into a committee meeting when now-convicted Sen. Joseph Bruno was the Senate Majority Leader, so the fact that the bill even got a vote in a Senate Committee was history itself.

This legislation for child protection should have been a no-brainer. Instead, it has become thoroughly political. Reportedly, New York Senate Republican leader Dean Skelos ordered Republicans to vote against it in a bloc, and they did so in Committee -- even those who had told survivors they favored the bill and would vote for it.

If there had been any doubt about the source of the most virulent opposition to the bill, Senator Lanza made it crystal clear: It continues to be the Catholic Conference. Lanza basically spoke from their playbook, claiming that giving child-sex-abuse victims the ability to go to Court would "ruin" the Church, and that the introduction of the bill was driven by anti-Catholic animus. He became quite passionate, insisting that no one was going to "destroy my church." Sen. Flanagan, too, took his cue from the Catholic Conference, claiming (inaccurately) that the same bill has bankrupted the Church in California.

In sharp contrast, the hero of the day for children was Chair Eric Schneiderman, who, in measured tones, stated that the issue was a hard one, but in the United States, those who are harmed should have a remedy. With respect to New York's child-sex-abuse victims, the vast majority have been blocked from receiving any remedy at all because of overly-short SOLs. (The lack of such remedies not only leaves the victim without justice, but also allows known perpetrators to continue to enjoy secrecy and impunity.)

Schneiderman also responded to Senator Flanagan, correctly pointing out that the Church was not, in fact, bankrupted in California. Indeed, the only California diocese to bring voluntary bankruptcy proceedings was the San Diego Diocese, which was publicly chastised by the bankruptcy judge for misleading her about the extent of its impressive wealth. No services were cut, and no parishes or schools were closed because the victims created by the Church were permitted to go to court.

In the Codes Committee, three Democrats joined the Republicans in voting against letting the bill go to the floor, though none appeared at the Committee meeting, voting only in absentia. Sen. Shirley Huntley, whose website claims she has been a strong advocate for children, was a particular disappointment. Sen. Breslin, who is Catholic, and Sen. Jeff Klein also voted against SOL reform.

Legislators Who Seem to Care More About the Vandalism of Property than the Well-Being of Children

Here is where New York politics waltzed into Alice in Wonderland territory: Mere days after the Codes Committee killed the CVA this session, Sen. Jeff Klein -- one of a number of Senators who couldn't be bothered to show up for the Codes Committee vote on the CVA -- joined Archbishop Timothy Dolan and other religious leaders to tout S.1909, (available at http://open.nysenate.gov/legislation/api/1.0/html/bill/S1909), which increases the criminal penalties for vandalism of church and synagogue properties.

Klein, who was recently embroiled in an alleged pay-to-play scandal when he was caught selling $50,000 "exclusive meetings" to special interest groups, apparently has taken an active role in fighting against the vandalism of church walls. According to the Yonkers Insider, " In February of this year, Senator Klein helped clean up graffiti on the rectory wall of Saint Francis Xavier Church in Morris Park in the Bronx. Saint Francis Xavier Pastor Father Matthew Fiore reached out to Senator Klein's office after finding the graffiti on the rectory wall on the first floor of the church on the morning of Friday, February 19th. Within 24 hours of the Pastor contacting Klein's office, Senator Klein and his graffiti clean-up crew went to the church to remove the graffiti."

To quote one of the victims of incest who has been fighting for the CVA, in light of Klein's indifference to child-sex-abuse victims, his swiftness in addressing church graffiti issues was like a "kick in the gut." Recently, all one hears about is the mishandling of child sex abuse within the Catholic Church worldwide. Yet somehow, in New York, the Catholic Conference was capable of stifling all child-sex-abuse victims' claims and, at the very same time, obtaining for itself additional penalties against those who damage its property. You don't have to be a genius to figure out that the New York Catholic Conference is putting property ahead of children's safety in light of these two developments, spanning just two days!

New York's Archbishop Has Proven Himself Indifferent to Children's Victimization

How could New York Archbishop Timothy Dolan be so tone-deaf that he would create the circumstances for such an unflattering and, frankly, unChristian, pairing of issues? Didn't Jesus throw out the moneychangers from the temple and threaten all who harmed the little ones? Once again, the Catholic bishops lack any sense of how what they do resonates with child-sex-abuse victims. They are persistently indifferent.

This incapacity for empathy with victims of priests was further underscored last week by the Pope, when he included Dolan on the committee of bishops that is charged with looking into the Irish child-sex-abuse situation. From a child-sex-abuse victim's perspective, what has Dolan done so far? As the Archbishop of Milwaukee -- his former post -- he succeeded in keeping the secrets of the Milwaukee Archdiocese by killing CVA reform when he was there. And now, he has succeeded on the same score in New York. One victim after another has blogged that putting Dolan on such a committee is the equivalent of letting the fox guard the henhouse. Some of them were even sharper in their language—describing the decision as a move that charged the fox with guarding the little chicks in the henhouse, easy pickings.

Currently, New York has one of the stingiest statutes of limitations for child sex abuse in the entire country -- 18 years-old for criminal charges and 23 for civil claims. In the future, it is inevitable that New York will radically expand these statutes of limitations for child sex abuse, because justice demands it, and because that is the trend in the entire country. Florida just eliminated all of its statutes of limitations for child sex abuse; Delaware did the same thing in 2007; Connecticut gives victims until age 48; Pennsylvania until age 53; New Jersey has a liberal discovery rule (which New York courts rejected, saying it was an issue for the legislature). Thus, the Catholic Conferences have their fingers in a dike that is crumbling around their hands. Yet it seems that they will keep those fingers in place as long as the bishops' lobbying dollars last, and as long as New York Senate members like Sens. Klein, Lanza, and Flanagan continue to act as they did last week.

Research establishes that one in four girls, and one in five boys, are sexually abused. Not only clergy child-sex-abuse victims, but incest victims too, are increasingly demanding their day in court, and the kind of statute-of-limitations reform that would make that possible. And there are a lot more incest victims than there are clergy victims. As society increasingly acknowledges the gravity and scope of the child-sex-abuse problem, and comes to understand the scientific studies showing that victims often need decades to come forward, citizens will demand laws that fit the needs of the victims, not the perpetrators or the institutions that assigned child abusers to work with children. Given the vital role of SOL reform in identifying perpetrators and creating justice for victims, and the growing political will of the victims, we may soon see New York legislators losing -- not holding -- seats when they let party leadership and the bishops drown out the voices of the victims.

Marci Hamilton, a FindLaw columnist, is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law and author of Justice Denied: What America Must Do to Protect Its Children (Cambridge 2008). A review of Justice Denied appeared on this site on June 25, 2008. Her previous book is God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005), now available in paperback. Her email is hamilton02@aol.com.